Veteran Ombudsman's ACVA Testimony from 29 Oct 2012

Study of the Veterans Review and Appeal Board Processes, Veterans Ombudsman's Speaking Notes, House of Commons Standing Committee on Veterans Affairs
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Mr. Chairman, Committee Members,
Thank you for inviting me to appear before you today to share my thoughts on the Veterans Review and Appeal Board.
Your review is very important given the critical role that the Board plays in ensuring that Veterans and other clients of Veterans Affairs Canada receive the benefits to which they are entitled.
In any given year, Veterans Affairs Canada makes close to 40,000 decisions with appeal rights to the Board. Given the number of decisions, and despite efforts to the contrary, errors can be made. Therefore, it’s important to have an independent, specialized body that Veterans and other clients of Veterans Affairs Canada can turn to when they are dissatisfied with the Department’s decisions. An efficient redress process is key to accessibility.
Parliament was of that view as well when it created the Board in 1995, entrusting it with the power to change or overturn decisions made by Veterans Affairs Canada if it finds that the laws governing disability pensions and awards were not properly applied.
To fulfill, and I quote, the “recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependants”, Parliament asked the Board to adopt a liberal and generous interpretative approach when making decisions and specifically directed the Board, through section 39 of the Veterans Review and Appeal Board Act, to draw every reasonable inference in favour of applicants, to give them the benefit of the doubt when weighing the evidence, and to accept any credible uncontradicted evidence.
More than 20,000 Veterans and other applicants are better off as a result of decisions made by the Board since its creation.
Yet, as impressive as the statistic is, there is mistrust of the Board within the Veterans’ community and much concern as to whether or not the Board is making decisions in compliance with its enabling legislation. I wanted to know if those concerns were founded and this is why we carried out the analysis of Federal Court judgments pertaining to the Board.
As you know, 140 Board decisions were challenged in the Federal Court and eleven of those were appealed to the Federal Court of Appeal. In those cases, the Courts had to determine if the Board made its decisions in compliance with the Veterans Review and Appeal Board Act, and in accordance with principles of procedural fairness. Since the Federal Courts provide an independent judicial assessment of the manner in which questions of law, fact and procedural fairness are handled in cases before them, it made sense to me to take a look at the Courts’ judgments pertaining to the Board.
Before I address the findings and recommendations in my report, let me take a moment to discuss the issue of statistics.
Since its creation in 1995, the Board has made more than 119,000 decisions, of which 34,000 could have been subject to judicial review. To suggest that there is nothing to worry about because only 140 of those decisions have been challenged in the Courts does a great disservice to Veterans and serving members of the Canadian Forces and the Royal Canadian Mounted Police.
There are many reasons why ill or injured Veterans and serving members do not take their cases to the Federal Court, including “appeal fatigue” and above all legal costs, which can vary from $15,000 to $50,000. So contrasting the number of Federal Court challenges to the overall number of decisions made by the Board over the years is meaningless and misleading. What’s important is what the Federal Court says about the cases it reviews.
In fact, I would argue that it is the misguided opinion that it is “only 140 decisions” and that “all else is fine” that explains why Board decisions have been returned by the Federal Courts for the same reasons over a long period of time. This means to me that neither the Board nor the Department takes the Federal Court judgments seriously enough.
Up until 2009-2010, the Board used the percentage of Federal Court judgments that uphold VRAB decisions as a performance indicator of fairness in the redress process for disability benefits and was satisfied that fairness was assured if the Court upheld 50% of its decisions. That is not acceptable. Furthermore, in its 2010-2011 performance report, the Board did not report against this indicator at all. Instead, it reported on how fast decisions were made.
I’m sure that you have heard the old adage “What gets measured, gets managed”. While I encourage both the Department and the Board to find quicker ways to address the needs of ill and injured Veterans and serving members, it should not be done to the detriment of the quality of the decisions made.
So, to get back to my report findings and recommendations, the independent analysis performed by the law firm of Borden Ladner Gervais found that in 60% of the 140 Board decisions reviewed by the Federal Court, the Court ruled that the Board erred in law or fact, or failed to observe principles of procedural fairness.
The five most common errors for which the Federal Court returned decisions to the Board for review were:
1. the failure to liberally construe the provisions of the Veterans Review and Appeal Board Act and the Pension Act;
2. the failure to accept credible uncontradicted evidence;
3. the failure to accept credible new evidence;
4. the failure to give the benefit of the doubt; and
5. the failure to ensure procedural fairness by not providing sufficient reasons for decisions or not disclosing medical evidence considered by the Board.
Based on those findings, I concluded that Veterans’ concerns are founded and that the status quo is not acceptable. Changes are needed.
As you know, I made seven recommendations:
· Three recommendations address the need for greater transparency and accountability, namely,
o improved reporting to Parliament;
o posting all Board and Federal Court decisions on the Board’s Web site, and
o the provision of reasons for decisions that clearly demonstrate that the Board has met its obligations under its enabling legislation.
· Two recommendations called for the establishment of a formal process to review each Federal Court judgment rendered in favour of the applicant for the purpose of remedial action to the way decisions are made, and for the priority treatment of cases sent back to the Board for rehearing.

· And the last two recommendations call for the Bureau of Pensions Advocates to represent Veterans before the Federal Court and for legislative changes to allow for benefit retroactivity to the date of initial application, in cases where the Board makes a favourable decision as the result of a successful challenge in the Federal Court.
The Veterans Review and Appeal Board has put in place a plan to address the first five recommendations, and I thank Mr. Larlee for acting as quickly as he has. You may be interested to know that my Office has just started a follow-up review to determine if the changes made by the Board fully address the shortcomings that we have identified. The report will be released in the New Year.
As for the last two recommendations, I am engaged with the Minister. He has recently outlined his action plan to further reduce red tape, increase efficiency and provide clarity around decisions. If properly implemented, these actions could reduce timelines in process and reduce the need for Veterans to seek relief in the Federal Court. As I have said before, a plan is only that until it is actioned, and I will be monitoring this as we move forward to ensure that the actions taken are indeed addressing the intent of the recommendations.
For me, the matter is quite simple. As long as the Federal Court continues to return the majority of Board decisions for errors of fact, law or procedural fairness issues, then I will continue to say that fairness in the redress process is not assured.
My report looked at the end result, the Board’s decisions themselves. Your review of the Board’s processes and activities is timely and should address the “why” questions. Why is the process not functioning as it was meant to? How should the Board’s and the overall VRAB-VAC process be improved going forward?
I humbly suggest that there are six key areas that should be looked into: the Board’s structure, the selection process of Board members, workload issues, process by which the Board’s and the Department’s decisions are made in accordance with Federal Court judgments on a go-forward basis, quality assurance and efficiency vs. effectiveness equation, and very importantly, the Board’s operating culture.
In the end, however, it all comes down to culture, and I would like to explain why.
In 1967, the Committee to Survey the Organization and Work of the Canadian Pension Commission, better known as the Woods Committee, in addition to providing recommendations for reform, documented the evolution of the administration of Veterans benefits. It showed that from the enactment of the Pension Act in 1919, the intention had always been to have some form of an appeal body for Veterans.
Despite major reforms through the years, that goal had not been achieved. Despite that, in 1967, the Woods Committee was still adamant that an independent appellate body was essential for maintaining the integrity of the disability process and ensuring Veterans have trust in the system.
The Woods Committee went into much detail examining a number of issues that were major concerns not only for Veterans, but for the government as well, including: staffing, low percentage of appeals granted in favour of the applicant, the need for reasoned decisions, the unfair practice of not disclosing information to the applicant, and the failure of adjudicators to liberally construe the legislation in favour of the Veteran.
In 1995, the Woods Report’s goal of an independent appellate body was finally achieved.
Now, here we are in 2012, once again discussing the effectiveness of the Veterans Review and Appeal Board in relation to the very same issues of processing times, board composition, reasons for decision, disclosure of information, and liberally construing the legislation, that have been debated since 1919.
What history has shown is that although structural change can alter processes to create efficiencies and increase effectiveness, cultural change is what is needed if we want to address the “why” questions and eliminate the root causes of many of our Veterans’ concerns.
The first step to cultural change is transparency. On the one hand, Veterans need to have full disclosure of the information that decision makers are using to make their decisions, and they need clearly reasoned decisions that are understandable and make sense to them. On the other hand, decision makers need to have all the information necessary to make decisions at the earliest point in the process.
The second is quality control of the adjudication process. Measures need to be put in place so that the Board and the Department work together to improve the “quality” of the overall process rather than, as is too often the case now, having the effects of expedited processing at the beginning of the application process leading to an increase in the Board’s workload at the end of the process.
Yes, it’s important to move things quickly, but is it not more important to get it right from the beginning?
This goes to the issue of why so many decisions are varied at the Department’s review level and at the Board’s level. That’s the question that the Department asked McInnes Cooper to address in 2007. In reviewing the adjudication process, McInnes Cooper found that decisions were varied at the Department’s review level on the basis of additional evidence that was often in existence at the time of initial application but was not included with the application. In the view of McInnes Cooper and I quote “the adequacy of claims preparation at the initial application and first level decision stage is driven by the fact that, whether by accident or design, there is greater focus on turnaround times and productivity”. As for the variance of departmental decisions at the Board level, McInnes Cooper identified 3 contributing factors: personal testimony, spirited advocacy by a pension advocate and new evidence.
The fact that decisions are varied in favour of applicants at each redress level is often given as evidence that the system is working but it can also be a sign that there is a problem at the beginning of the process. I am convinced that if more time and assistance was provided to applicants to ensure that all the needed information was available before moving forward to adjudication, the Board’s workload would be greatly reduced and it would be able to concentrate on complex cases.
Thirdly, I would submit that future discussions on matters pertaining to the disability benefits process should look at the entire process, encompassing processes of both the Department and the Board.
Fourthly, the effect of not liberally construing the legislation is affecting not only the efficiency and effectiveness of the entire system; it is adversely affecting the lives of too many of our Veterans and their families. If legislation pertaining to Veterans was liberally construed at the front end of the decision making process, as was the initial intent of legislators, such as yourselves, I believe that we would not be seeing the problems that we do today at the backend of the process. Educating departmental adjudicators and Board members on the meaning and application of the phrase “liberally construing” is critical. Even more so given that military service and the documentation of such service often creates difficulties.
In the end, we should be aiming for a more streamlined and effective system that will meet the needs of ill and injured Veterans and serving members.
As I stated earlier in my remarks, I firmly believe that the Veterans Review and Appeal Board has a critical role to play. Closing the Board would do a great disservice to Veterans and serving members of the Canadian Forces and the Royal Canadian Mounted Police. But changes to the Board are needed to restore trust in the organization and ensure fairness in the redress process.
Thank you.